People v. Marshall, Docket No. 25020

• Decision Date: 28 May 1976
• Docket Number: Docket No. 25020
• Citation: 69 Mich.App. 288,244 N.W.2d 451
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark Anthony MARSHALL, Defendant-Appellant. 69 Mich.App. 288, 244 N.W.2d 451
• Court: Court of Appeal of Michigan — District of US

Page 451

244 N.W.2d 451

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark Anthony MARSHALL, Defendant-Appellant.

Docket No. 25020.

69 Mich.App. 288, 244 N.W.2d 451

Court of Appeals of Michigan.

May 28, 1976.

Released for Publication Aug. 11, 1976.

Leave to Appeal Denied Sept. 9, 1976.

[69 MICHAPP 289] Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Timothy A. Baughman, Asst. Pros. Atty., for plaintiff-appellee.

Before WALSH, P.J., and ALLEN and KELLY, JJ.

ALLEN, Judge.

'To none will we sell, to none will we deny or delay, right or justice.

--Magna Carta (1215)

This interlocutory appeal raises the question of the constitutional validity of nonstatutory procedures under which the defendant was taken into custody, allegedly without probable cause to arrest, under an order issued by a judicial officer granting the temporary detention of defendant for the purpose of obtaining a blood type sample and a hair sample.

On August 19, 1974, the bodies of Wallace Marshall, his wife Constance, and one Beatrice Williams were discovered at the Marshall residence on LaSalle Street in Detroit. A fourth victim, [69 MICHAPP 290] Beatrice Blount, was found barely alive. She died at the hospital not long thereafter. The weapons used were a meat cleaver and two butcher knives apparently taken from the kitchen of the home by one or more left-handed persons who police theorized had access to the scene of the crimes. Specifically, the fact that the premises were locked at the time the victims were found, despite chipping around the lock on the kitchen door which appeared to have been carried out from the interior, indicated the victims may well have known their assailant(s). Nothing of value was reportedly taken. Strands of hair, other than the victims', classified as from one wearing a 'relaxed Afro' were found on the night garment of Constance Marshall. Moreover, sperm was found on the clothing of Constance Marshall and Beatrice Williams, indicating the perpetrator masturbated over the bodies.

On September 13, 1974, the Wayne County Prosecutor's Office requested that a Detroit Recorder's Court Judge issue a temporary detention order against defendant so police could secure blood and hair samples to compare with the sperm ¹ and hair recovered from the scene of the crimes. In a supporting affidavit, the prosecutor meticulously listed the reasons why the investigation had focused upon defendant. Defendant is Wallace Marshall's son, and Constance Marshall's stepson. He is left-handed, wears a 'relaxed Afro' hairdo and has a history of assaultive crime. The affidavit also indicated that there may well have been some friction between defendant and his father, that anonymous phone calls were received by police informing that defendant was involved in the crime, and that an alibi witness for defendant was not likely telling [69 MICHAPP 291] the truth. The prosecutor's petition stated that no search warrant had been sought prior to the request for a detention order because it was felt that sufficient evidence establishing probable cause had not yet been recovered and that 'the investigation * * * has proceeded as far as possible by the employment of the regular facilities available.'

The court granted the request but, in lieu of issuing a search warrant, signed an order captioned 'Order Granting Temporary Detention of Mark Marshall For The Purpose of Obtaining A Blood Sample and Hair Sample.' The order contained conditions that the detention last just long enough to secure hair and blood samples, that defendant be given the option of having his own physician take the blood sample, that counsel may be present, and that no other search be made during the detention. On September 16, 1974, defendant was taken into custody, the samples were obtained, and he was released. On September 19, 1974, police obtained a search warrant and seized a pair of undershorts, a red cap, and a square piece of foam rubber from defendant's residence. ² Defendant was arrested on October 8, 1974, and charged with four counts of murder. Following preliminary examination on October 18, 25 and 28, 1974, he was bound over on all counts to Detroit Recorder's Court. On February 18, 1975, defendant filed a motion to suppress the hair and blood samples on the basis that said evidence was the product of an unreasonable search and seizure. From an opinion and order denying the motion entered on July 3, 1975, defendant successfully sought leave to appeal.

The briefs of the parties are comprehensive. The essence of the position taken by learned counsel [69 MICHAPP 292] for defendant may be stated thusly: the Federal and state Constitutions protect a person against unreasonable searches and seizures; whether based upon a warrant or not, arrests and searches must be grounded upon probable cause to be reasonable; the order of detention in the instant case is a search warrant masking under a different name; since the detention order was admittedly issued, in the absence of probable cause to arrest, the fruits of the unreasonable search and seizure should have been suppressed.

The people point out that temporary detentions need not always be based upon a showing of probable cause in order to be reasonable. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Relying primarily upon Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), the people contend that temporary detentions for the purpose of securing physical character evidence are permissible where circumscribed procedures are followed pursuant to judicial authorization, even absent probable cause. Citing cases from other jurisdictions which support police action of the type involved here, ³ the People argue that since (a) there was reason to suspect defendant was involved in the crime, (b) the detention order was judicially authorized, (c) the scope of the search was restricted, and (d) the intrusion relatively minor, there was no violation of the defendant's constitutional rights.

We are thus requested to decide the extremely delicate issue of whether detaining a criminal suspect pursuant to a court order without probable cause to arrest for the object of taking physical character evidence is permissible under the Federal and state constitutions. The issue becomes [69 MICHAPP 293] even more delicate because, as is hereinafter noted, legislation which would have authorized the procedure employed in the present case, though recommended by a special committee of the Michigan Bar, has not been enacted.

The Fourth Amendment of the United States Constitution provides that:

'The right of the people to be secure in their persons, houses, paper, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' ⁴

Although the touchstone of the Fourth Amendment is 'reasonableness', Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), with some notable exceptions, ⁵ probable cause is required[69 MICHAPP 294] to support a lawful search or seizure whether with or without a warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); People v. Lansing Municipal Judge, 327 Mich. 410, 42 N.W.2d 120 (1950). See also United States v. Rubin, 474 F.2d 262 (CA 3, 1973); Commonwealth v. Tate, 237 Pa.Super. 104, 346 A.2d 570 (1975).

The mainspring in justification of the unique--to Michigan at least--legal process employed in the instant case stems from the language of the Supreme Court in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). There, in ruling that fingerprint evidence obtained via a police round-up of several blacks and introduced at defendant's trial on a charge of rape should have been suppressed as the fruit of an unconstitutional seizure, the organ of the Court, Justice Brennan, made the following observations:

'Detentions for the sole purpose of obtaining fingerprints are no less subject to the constraints of the Fourth Amendment. It is arguable, however, that, because of the unique nature of the fingerprinting process, such detentions Might, under narrowly defined circumstances, be found to comply with the Fourth Amendment even though there is no probable cause in the traditional sense. See Camara v. Municipal Court (387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930) * * *. Detention for fingerprinting may constitute a much less serious intrusion upon personal security than other types of police searches and detentions. Fingerprinting involves none of the probing into an individual's private life and thoughts that marks an interrogation or search. Nor can fingerprint detention be employed repeatedly to harass any individual, since the police need only one set of each person's prints. Furthermore, fingerprinting is an inherently more reliable [69 MICHAPP 295] and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as the improper line-up and the 'third degree'. Finally, because there is no danger of destruction of the fingerprints, the limited detention need not come unexpectedly or at an inconvenient time.

For this same reason, the general requirement that the authorization of a judicial officer be obtained in advance of detention would seem not to admit of any exception in the fingerprinting context. We have no occasion in this case, however, to determine whether the requirements of the Fourth Amendment could be met by narrowly circumscribed procedures for obtaining, during the course of a criminal investigation, the fingerprints of individuals for whom there is no probable cause to arrest.' 394 U.S. at 727--728, 89 S.Ct. at 1397....